Judge: Hayden J
Citation:  EWCOP 56
In Re Z, Hayden J had to contemplate three options on behalf of a woman, Z, detained under the Mental Health Act 1983, with very severe anorexia who had, in the 31 years since being diagnosed at age 15, had never engaged in any meaningful way with treatment, and who had, in consequence, both an extremely low BMI, severe osteoporosis and a low white blood cell count, and who was held not to have capacity to make decisions as to whether to undergo treatment for her anorexia.
The first possibility was to continue treatment under s.3 Mental Health Act 1983 which would involve detention in hospital and naso-gastric feeding under physical restraint until Z’s weight and physical health improved to the point where it would be possible to discharge her. This possibility was agreed both by her treating doctor and the independent expert, Dr Glover (who has appeared in almost all reported cases involving anorexia under the MCA) to be highly unattractive, with a “real risk that feeding under restraint here would be dangerous, to the extent that death might be caused iatrogenicaly i.e. the treatment risks killing the patient. The obvious psychological distress to Z and, if I may say so, to her parents and to the medical staff is difficult to justify. In addition, Z’s osteoporosis is so severe that the medical consensus is that physical restraint faced with the resistance that is likely would probably result in significant musculoskeletal injury” (paragraph 7).
The second possibility also involved continuation of feeding, again under s.3 Mental Health Act 1983, involving detention in hospital, but with the feeding to take place under chemical sedation. However, given her parlous state of health, the medical consensus was that sedation would involve a very significant risk, most particularly of respiratory or cardiac arrest. Hayden J held that anaesthesia would plainly be inappropriate even for insertion of the naso-gastric tube, and that even with the sedation, the risk that Z may try to remove the tube, whilst diminished, is not extinguished. Her treating clinician considered that there was a “very high risk” of respiratory or cardiac arrest as well as the risk that the sedation option could lead to some other iatrogenic cause of death, which, as I referred to in relation to option 1, would be very traumatic for Z and all concerned.”
Both of these options had profound disadvantages considered in isolation, and it was also clear that the severity and duration of Z’s anorexia itself indicated a resistance to treatment; it was therefore reasonable to predict, Hayden J held, that that she would use her very best efforts to resist them. The third option, by contrast, was very much less draconian, namely that she should be discharged from the framework of the Mental Health Act 1983 and treated, if she is prepared to engage at all, only on a voluntary basis. This was subject to a structured plan which had at its heart the objective of providing support and encouragement to comply with a feeding programme and general therapeutic assistance.
Hayden J noted that:
In analysing where Z’s best interests lay, Hayden J held that:
Hayden J considered the case-law in this area, thus:
Drawing the threads together, Hayden J held as follows:
As a procedural point, Hayden J noted that whilst the effect of s.28 MCA 2005 would on its face prohibit the making of a declaration concerning coercive treatment within the scope of Part IV to the MHA 1983, he did not need to determine the point given the way that he had determined the case. Further, “given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the Inherent Jurisdiction and so the debate seems to me to be arid.”
Hayden J, finally, noted that it had been possible to bring the case on from first hearing on 19 December to final hearing on 30 December (including the instruction of Dr Glover), and that “the avoidance of delay should be regarded as a facet of Article 6 (i.e. a fair trial) in these cases. In this respect the Courts must play their parts too and ensure that case management centres upon the needs of the patient which cannot be derailed by administrative pressures faced by Trusts or the Courts.”
As with Ms X’s case (a case which we understand was cited to the court but not referred to by the judge), and Miss W’s case, Ms Z’s case leaves one with a strong impression not just of the challenges facing the individuals in question (including the clinicians) but also of the fact that, silently, the courts are developing a form of therapeutic jurisdiction in this area in which they go to careful lengths to emphasise the extent to which they are handing back control of the ultimate decision as to whether to accept or refuse food to the person at the heart of the proceedings, so as to give the best chance that the person will, in fact, make the “right” decision and accept food. Whilst it might be possible from some standpoints to contend that such represents collusion between the professionals (including the Official Solicitor) and the court, for our part we have not the slightest problem with this collusion. It must, at a minimum, be preferable to the extraordinary levels of coercion that would have been involved in option 1 in this case (and the scarcely lower levels in option 2); it can also, it seems to us, to be characterised as an entirely proper and CRPD-supportive way in which to seek to support individuals with anorexia to bring into alignment what is often, as in this case, identified as being their will to live with their clashing preference not to eat.